CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 4778
Heard in Calgary and with Zoom Video Conferencing, June 9, 2021
Concerning
BOMBARDIER
And
TEAMSTERS CANADA RAIL CONFERENCE
DISPUTE:
Appeal of the dismissal of Mr. J. Wood of Edmonton, AB.
JOINT STATEMENT OF ISSUE:
Following an investigation, Mr. Wood was dismissed which was described as “the results
of this Investigation revealed that you did in fact fail to comply with the Bombardier Drug and
Alcohol Policy during your tour of duty on August 28, 2019. As a result of this non-compliance,
the Company has no alternative but to terminate your employment effective September 26, 2019.”
Union’s Position:
The Union contends the Company has failed to meet the burden of proof required to
sustain formal discipline related to the allegations outlined within the discipline assessment. In
the alternative, the Union contends that Mr. Wood’s dismissal is unjustified, unwarranted and
excessive in all of the circumstances, including significant mitigating factors evident in this matter.
The Union contends that the Company conducted a for-cause substance test in an
improper manner, violating the Bombardier Drug and Alcohol Policy.
The Union requests that the discipline be removed in its entirety, and that Mr. Wood be
made whole for all lost earnings with interest. Further, the Union seeks damages, in amounts to
be determined, resulting from the aforementioned violations. In the alternative, the Union requests
that the penalty be mitigated as the Arbitrator sees fit.
FOR THE UNION: FOR THE COMPANY:
(SGD.) D. Fulton (SGD.) A. Ignas
General Chairperson Manager, Human Resources & Labour Relations
There appeared on behalf of the Company:
D. McDonald – Counsel, Norton Rose Fulbright, Toronto
A. Ignas – Manager, Labour Relations and Compliance Canada, Kingston
And on behalf of the Union:
M. Church – Counsel, Caley Wray, Toronto
D. Fulton – General Chairman, Calgary
D. Edward – Senior Vice General Chairman, Calgary
R. Finnson – Vice General Chariman, Calgary
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E. Mohan – Local Chairman, Division 310, Edmonton
C. Frewin – Local Chairman, Division 310, Edmonton
S. Silvestri – Summer Law Student, Caley Wray, Toronto
J. Wood – Grievor, Edmonton
AWARD OF THE ARBITRATOR
The grievor was employed as a Product Integration Technician, a safety-sensitive
position, at the new Trans Ed Valley light rail transit project in Edmonton. He began his
employment with the Company on June 5, 2018.
There is no applicable collective agreement yet in place between the parties. The
parties, who are both members of CROA, nevertheless agreed to advance the current
grievance to final and binding arbitration through the CROA process. It is understood this
process includes the Company being held to a just cause standard for the grievor’s
dismissal.
The grievor reported to work at the TransEd workplace before 7:00 a.m. on August
28, 2019. At about 7:30 a.m. that morning the grievor’s Manager, Shane Campbell,
completed a safety briefing. The grievor was present for the briefing. Mr. Campbell’s
written memorandum of August 28, 2019 described what occurred with the grievor
afterwards. It reads in part:
Started and completed safety brief on LRV1. Noticed a smell like an alcoholic drink.
Took the employee (Jon Wood) aside and asked if there was alcohol in his coffee. Jon
admitted there was and that there was some Bailey’s in his coffee, “just enough to
colour the coffee”. I explained that there is a zero tolerance policy for alcohol on site.
After explaining to the grievor the Company’s zero tolerance policy about alcohol
on site, Mr. Campbell advised the grievor that he would be required to submit to a drug
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and alcohol test. Mr. Campbell then contacted Mr. Jerrold Harvey in the Safety
Department and requested his support.
Mr. Harvey arrived on the site approximately forty minutes later and informed the
grievor he would be suspended with pay pending the results of the drug and alcohol test.
Mr. Harvey’s own memorandum of the incident, also dated August 28, 2019, contains the
following under the NOTES section:
When I arrived at the site, I spoke with the employee in private and asked why he didn’t
stay home? His response was, “I had drinks up until midnight and felt fine when I
woke.”
I asked the employee why he had Bailey’s in his coffee, he said, “it’s only a splash,
enough to cover the coffee.”
I reminded the employee once again that it is a safety absolute site (0 tolerance for
alcohol or drugs to be brought onto site).
The employee said, “what will they do, get rid of their best employee for having a splash
of Bailey’s in my coffee?”
….
The grievor’s drug and alcohol POCT test was returned negative for alcohol.
Further laboratory testing confirmed the negative result for alcohol as well.
The Company delivered a “Notice to Appear” to the grievor on September 17, 2019
advising that he was to appear for an investigation on September 20, 2019. His statement
reads in part as follows:
Q015: Did you admit to supervisor Jerrold Harvey that what you had there was some
Bailey’s in your coffee as stated in Appendix 3?
A015: I call bailey’s bailey coffee creamer. I’ve been with girlfriend and she drinks
almonds, which is also an almond creamer. I drink Baileys coffee creamer, I’ve been
doing this for years. I refer to Baileys coffee creamer as Bailey’s.
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Q016: Did you tell Supervisor Jerrold Harvey that the Bailey’s you allegedly had in your
coffee was non-alcoholic
A016: No, I just referred to it as Bailey’s as I always do.
Q017: Why would you not explain to supervisor Jerrold Harvey that the Bailey’s you
put in your coffee was non-alcoholic?
A017: Because I was not drinking alcohol. He didn’t ask the question if I had alcohol.
Q018: Did you tell Manager Shane Campbell that the Bailey’s you allegedly had in
your coffee was non-alcoholic?
A018: No.
Q019: Why would you not explain to Manager Shane Campbell that the Bailey’s you
put in your coffee was non-alcoholic?
A019: Just didn’t. None of his business.
During the investigation, the Union called Mr. Campbell whose statement reads in part as
follows:
CF 1: Did Jon ever tell you he put alcohol in his coffee?
SC: I asked if there was alcohol in his coffee. Jon admitted there was baileys in his
coffee.
CF 2: As per Appendix 10: What is the name brand on the coffee creamer?
SC: Name brand say Baileys
CF 3: Can you identify anywhere in the ingredients of Appendix 11, where there is
alcohol content?
SC: No, not on this picture.
CF 4: Did you examine or take any steps to examine Mr. Woods coffee cup to ensure
there was alcohol?
SC: The step I took was asked the employee if there was alcohol and he said Baileys.
CF 5: Did Mr. Wood use the term Bailey's or Alcohol?
SC: I used the term Alcohol, and he admitted there was some Bailey's in his coffee.
Just enough to color it.
CF 6: Did he use the word Alcohol?
SC: I don't think he used the word Alcohol.
CF 7: Do you have any proof that there was alcohol in the coffee cup?
SC: I have an employees admission there was alcohol.
CF 8: Did Mr. Wood use the term Alcohol in his coffee?
SC: I don't believe he used the word Alcohol. He said Baileys in his coffee.
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CF 9: Did anyone else confirm your suspicion of alcohol in his drink?
SC: What happened was I spoke with the employee, and based on the admission I
explained to Jon I had to act and I was going to send him for testing. The next thing I
did was contact Supervisor Jerrold Harvey from HSE and he brought down the
necessary paperwork that we filled in together and we went for the drug and alcohol
test.
CF 10: What was the result of Mr. Wood drug and alcohol test?
SC: Zero
CF 11: Did Mr. Harvey examine Mr. Woods coffee?
SC: Not to my knowledge.
CF 12: According to your previous answer nobody confirmed your suspicion of alcohol
in his drink?
SC: Nobody confirmed there was alcohol in his coffee.
The Union maintains there is no evidence of either impairment or, for that matter, that
the grievor had any alcohol at all in his coffee cup. Mr. Campbell, the only material witness
for the Company, was only able to say that the grievor smelled of alcohol. No one else
observed the grievor or noted any of the typical indicia of impairment. Nor is there evidence
that the grievor violated the Bombardier Drug and Alcohol Policy (the “Policy”) by possessing
alcohol at work with the intention to consume alcohol while on duty, as they first alleged in
their Step 3 grievance reply.
The Union further submits that if alcohol was present in the grievor’s coffee cup,
as the Company alleges, there would have been a positive reading for alcohol from his
drug and alcohol test. The Union notes that Mr. Campbell himself confirmed that the
alcohol result from the clinic testing was an absolute zero reading. The Company, in the
end, has failed to meet the evidentiary burden of proof required to establish a violation of
the policy. The Union submits that grievor should therefore be reinstated to his position,
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without losses, and that the Arbitrator also order damages be paid as a result of the
grievor’s treatment by the Company over this incident.
The Arbitrator agrees with the Company that the facts here are straightforward.
Mr. Campbell spoke to the grievor after completing the safety briefing. As noted in his
Memorandum of the incident, he “Noticed a smell like an alcoholic drink” from the grievor’s
coffee cup. Mr. Campbell then took the grievor aside and, according to his Memorandum
and his answers at the grievor’s investigation, asked him if there was alcohol in his coffee.
The grievor, according to Mr. Campbell, replied there was Baileys in his coffee, “just
enough to colour the coffee”.
Mr. Harvey also interviewed the grievor after he arrived at the operations facility.
He also took the grievor aside and asked him why he had Baileys in his coffee. According
to Mr. Harvey’s notes, the grievor responded in a similar fashion by stating “it was only a
splash, enough to cover the coffee”. The grievor stated at his interview that what he meant
by “Bailey’s” was not the alcoholic liquor, but rather a non-alcoholic coffee creamer. In
his words “I refer to Bailey’s coffee creamer as Baileys”. The grievor was asked why he
did not clarify that his coffee cup contained a non-alcoholic creamer to either Mr. Campbell
to which he responded it was “none of his business”.
I accept that the smell of alcohol from the grievor’s coffee cup led Mr. Campbell to
initially inquire with the grievor whether there was alcohol in his coffee. The grievor’s
spontaneous answer to Mr. Campbell, and later repeated to Mr. Harvey, was that he had
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Bailey’s in his coffee. I also agree with the Company’s assertion that the reference to
Bailey’s was reasonably interpreted by the Company as a reference to an alcoholic
beverage. This is the accepted and presumptive interpretation of “Baileys” in today’s
society.
This well-known understanding of Baileys as an alcoholic substance in my view
shifted the onus to the grievor at that point to clarify with Mr. Campbell that the Baileys in
his coffee was in fact the non-alcoholic creamer with the same brand name. His excuse
is that he did not clarify that the creamer was in fact non-alcoholic because it was “…none
of his [Mr. Campbell’s] business”. This response in my view was an attempt by the grievor
to avoid taking responsibility for letting the Company know in a timely manner that the
Bailey’s in his coffee cup was of the non-alcoholic variety, and not the commonly accepted
Baileys which contains alcohol.
In the end, I find that the grievor did in fact have an alcoholic substance in his
coffee on the morning of August 28, 2019. His first reaction when confronted by
management was to identify the substance as Baileys, “just a splash, enough to cover
the coffee”. The grievor’s failure to immediately clarify that the Bailey’s was a non-
alcoholic substance when by confronted by Mr. Campbell leads the arbitrator to conclude
on the balance of probabilities that the grievor had alcohol in his coffee cup and later
fabricated a story at his interview about the non-alcoholic Baileys in an attempt to avoid
culpability for breaching the Company policy.
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I would add that the drug and alcohol test was ordered by the Company for
purposes of determining whether the grievor was under the influence of drugs and alcohol
to the point of impairment while on duty. The grievor’s zero reading on the alcohol test
does not detract from the finding here that the grievor did in fact have Bailey’s, an
alcoholic substance, in his coffee cup on the morning of August 28, 2019 at the
Company’s operations site. By doing so, the grievor breached the Company policy, as
the Company asserts, by willfully possessing alcohol with the intention of consuming it in
his coffee while on duty.
In terms of mitigation, the grievor is not a long-service employee. Of more concern
is the fact that he was not truthful about his consumption of alcohol while at work. After
considering all the facts and evidence, I find there was just cause for the grievor’s
dismissal and no basis for adjustment of penalty.
The grievance is dismissed.
June 17, 2021 ________
JOHN M. MOREAU, Q.C.
ARBITRATOR